Friday, June 18, 2010

WASHINGTON — The Owner-Operator Independent Drivers Association (OOIDA) has filed preliminary papers to challenge the new electronic on-board recorder rule for Hours of Service that mandates the devices for the worst offenders.

The rule goes into effect June 4, 2012, and EOBRs will be required for carriers that in one on-site review have 10 percent or more HOS violations.

OOIDA, along with three members, William J. Culligan, Adam D. Burnett, and Douglas A. Oldham, filed a petition for review in the United States Court of Appeals for the Seventh Circuit June 2. The notice doesn’t have details; it just states that it is a petition for the court for review of the order and final rule “Electronic On-Board Recorders for Hours of Service Compliance” Docket Number FMCSA-2004-18940, which is the latest FMCSA EOBR rule to date.

But despite the limited wording in the court filing, The Trucker was able to get more information from OOIDA about why they are challenging the rule at this time.

“The challenge is to the current rule only,” said Norita Taylor, media spokesperson OOIDA. “But it’s certainly fair to say our members have expressed concern about future related rules. We are challenging it because our members are concerned about privacy interests, [that] EOBRs do not guarantee an accurate record of a driver’s HOS compliance and they are not economically justified.

“EOBRs only measure when the truck is running and give its location. They do not measure when a driver is doing something else for on-duty time such as fixing the truck, searching for a load, etc. If the whole point of EOBRs is to avoid allowing drivers to provide input into a logbook, then the problem hasn’t been fixed because they still have to provide input.”

In response to an inquiry by The Trucker, an FMCSA spokesman said the agency had “no comment” at this time regarding the challenge to the final rule

In some ways this challenge was a surprise since soon after the final rule was announced The Trucker spoke with OOIDA, which said it had no plans to challenge the EOBR rulemaking.

“The rulemaking as it stands is eminently avoidable for motor carriers if drivers take care of their logbooks and make sure all date- and time-stamped documents match their logs,” said Joe Rajkovacz, regulatory affairs director.

But later, there was a hint of a challenge when Todd Spencer, executive vice president at OOIDA, pointed out during a Congressional hearing in Washington that there’s no data on EOBRs and how they may or may not improve safety.

But Spencer also said OOIDA did not oppose the latest EOBR rule which mandates EOBRs for only the worst offenders, which goes along with what Taylor said, that they were concerned about future rules.

“The point I want to make on EOBRs is that there’s no safety data to show they enhance highway safety,” Spencer said during the hearing. “They can’t tell if a driver is sleepy, they can’t tell if a driver needs to rest, they can’t tell whether a driver is off duty or whether he’s physically handling 44,000 pounds of cargo. They are no more reliable than the paper logs that they would replace.”

Spencer also said they would have a large financial impact because of cost on the small companies.

The EOBR rule that was issued is small considering what some say is coming down the rulemaking pipeline.

On May 20 Dave Osiecki, the American Trucking Associations senior vice president, spoke in Little Rock at the Arkansas Trucking Association annual business conference about EOBRs as they relate to HOS recordkeeping.

“There are three rules coming,” he began. “Well one’s already come. Rule number one was published [in April]. This is a rule that targets historically non-compliant companies, companies that have had some HOS compliance issues in the past. The government believes they need to have all of their trucks with an on-board recorder. This rule kicks in June 2012 so it’s still about two years away.

“Number two is coming later this year and will likely be November/December time period and it will likely cover, at least from a proposed rule standpoint, new carriers, hazmat companies, and bus operators.

“And then the third rule is everybody else. So the big question becomes, when does the third rule hit? And it is a DOT/Congressional race to the finish line on that. DOT will get there. Congress may beat them with the Highway Bill and if the Highway Bill passes before rule number three comes about it will include an EOBR mandate for every truck in this industry. We can almost guarantee that.”

It’s unknown at this time how this challenge may or may not disrupt the two rules that Osiecki says are coming soon.